Police Captain Claims in Federal Lawsuit That He Didn’t Get Promotion Because He’s White

A police captain in Delaware has filed a federal lawsuit claiming that he did not get a promotion to police chief that he was qualified for because he was discriminated against based on race, in violation of Title VII of the Civil Rights Act of 1964. He is seeking a jury trial and damages.

Capt. David Spicer of the Dover Police Department in the City of Dover is suing: now-retired Chief of Police Marvin Mailey, Dover Mayor Robin Christiansen, Dover Council President Timothy Slavin, Safety and Advisory Committee Chair James Hutchison, Acting City Manager Donna Mitchell, Director of Human Resources Kimberly Hawkins, City Councilman David Anderson, and City Councilman Roy Sudler.

In the lawsuit, Spicer noted that some of the named defendants — Sudler, Anderson, and Mailey — are African Americans, in a seeming effort to bolster the claim of a race-based conspiracy against him. Spicer claimed that after Mailey became Deputy Chief of Police back in 2014 — because Mailey is an African American, Spicer says — “five Caucasian Officers filed grievances for racial discrimination.” Per the lawsuit:

The former Mayor, Carleton Carey, instructed Paul Bernat that if he wanted to be promoted to Chief of Police he would have to select Marvin Mailey as his Deputy Chief, an African American, despite the fact there were more qualified candidates for the position. Pressured by Mayor Carleton Carey, on April 4, 2014, Chief Paul Bernat had no choice but to choose Marvin Mailey as his Deputy Chief, because he was an African American, even though there were more qualified candidates for the position. As a result of Marvin Mailey’s promotion to Deputy Chief of Police, five Caucasian Officers filed grievances for racial discrimination. Defendant, City of Dover, settled the officer’s grievances.

In any event, Mailey retired this year from the force and the city is looking to fill that position, WBOC reported.

After the U.S. Equal Employment Opportunity Commission (EEOC) in July determined that Spicer’s complaint “does not establish a violation of the statutes,” Spicer filed the federal lawsuit we now discuss on Oct. 16, 13 days after applying for the police chief position again.

In the lawsuit, Spicer said that qualifications for the job posting in question were changed after outcry from civil rights activists and African American councilmen Anderson and Sudler. Spicer said the defendants wanted the requirements to be minimized — “the job description posted on January 18, 2017, required a Bachelor’s degree in business administration, criminal justice, public administration or a related field. It also stated a Master’s degree was preferred”; “Due to the political pressure from Mr. Anderson and Mr. Sudler, Representative Sean Lynn, and Council President Timothy Slavin recommended that the Chief of Police job description and requirements should be substantially minimized, including the removal of the requirement of a Bachelor’s degree.”

At the heart of Spicer’s argument is that he had the qualifications in the job description and then some, but Mailey, who is black, didn’t have a Bachelor’s degree and city officials ensured that Mailey became police chief anyway by changing the job requirements.

A few paragraphs later, Spicer made mention of a Police Chief Committee meetings on Feb. 1 and Feb. 14 in 2017, during which Councilman Slavin supported hiring of Mailey — Spicer says, because he was an African American candidate — and Anderson and Sudler expressed their opposition to the job requirements, knowing that Mailey not have a Bachelor’s degree or an Associate’s degree.

Mailey was nominated and confirmed on May 4, 2017. In the ensuing days, Spicer filed a grievance. The following month, that grievance was denied, and Spicer claimed he was thereafter retaliated against:

After filing a grievance, on July 24, 2017, Plaintiff was denied the promotion to Deputy Chief, despite being the most qualified candidate and transferred from his current position of Operations Division Commander to Administrative Division Commander. Plaintiff engaged in protected activity when he filed a charge of discrimination with the Delaware Department of Labor on September 19, 2018. On November 26, 2018, Marvin Mailey removed the Planning and Training Unit, including three sworn officers and four recruits from Plaintiff’s chain of command which again diminished Plaintiff’s job responsibilities and promotional opportunities as retaliation for filing a charge of discrimination.

Now that Mailey has retired, Spicer said that he has applied for the Chief of Police position, which once again includes “greater qualifications” in the job description:

The Police Chief Selection Committee decided to revise the Chief of Police job description, to include greater qualifications unlike the job description utilized in the hiring of Marvin Mailey as Chief of Police in 2017. The 2019 job description for the Chief of Police now includes a requirement of a Bachelor’s Degree and Master’s Degree is preferred. On October 3, 2019, Plaintiff Spicer applied for the position of the Chief of Police.

You can read the complaint in full below.

Capt. David Spicer complaint by Law&Crime on Scribd

[Image via Dover Police Department]

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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